§ MR. W. EWART
* I could have wished, Sir, that this question had come forward at a time more favourable to calm consideration and deliberate debate, not at the conclusion of a trial of deep and absorbing interest. But the machinery of Parliament moves on undisturbed by external events. I feared that a brief delay might become an indefinite postponement of the question, and I hope that the present solemn occasion may even invite public attention to the serious subject which is now before us. That subject appears to me to be one of increased and increasing interest. Since I last addressed you concerning it, the public aversion to capital punishment has become deepened and extended. Our juries have become more reluctant to convict. Our Judges have become more reluctant to pass sentence. Of one species of murder it may be said that it has ceased to be capital. I mean infanticide by mothers. Yet whom should the laws more vigilantly protect than those who are themselves unprotected? Of one class of murderers it may be remarked, that they are beginning to escape capital punishment altogether. I mean women. Yet it has been truly observed, that "crime is of no sex." If you cease to execute women, can you long continue to execute men? Your executions only amounted to five in the last year of the criminal returns. It is not easy to conceive that the safety of society depends on the execution of five individuals. On the other hand, the repeal of capital punishment has extended itself in foreign countries. It has there been followed, not by danger, but by general benefit. Under these circumstances, I ask you again to consider the question, not to precipitate your conclusion by a sudden abrogation of the present law, but to investigate (before a Committee) the facts which we offer to lay before you: in a word—to pause and to inquire.
I am aware that there are those who entertain a preliminary objection to the 1232 consideration of this subject. Their objection is founded on religious (or what I should rather venture to call theological) grounds. For an objection so founded, I can only feel the highest respect. But it appears to me that the House of Commons never enters on the path of theology without deserting the more open and safer road of common sense. I think, moreover, that questions of a religious character should not be contaminated by exposure to the heated and feverish atmosphere of a political assembly. On such subjects let every man form his separate and sincere opinion. But in this House let him only express, not argue on, that opinion. For my own part I have been long convinced that the repeal of the punishment of death is in strict conformity with the precepts and the spirit of the Gospel; and I rejoice to think that such was the conviction of those early Christians, on whom the first dawn of Revelation still continued to shed its lingering light.
The question then resolves itself into one of a practical and purely deliberative character. Does the punishment of death contain the elements of a sound and valid punishment? What are the elements of such a punishment? This is the question now before us.
It appears to me that a punishment, to be a valid punishment, should, as far as possible, be an effective punishment; effective on the mind and soul of the criminal, and effective for the repression of the crime; that it should, as far as possible, be an equal punishment; not unduly weighing down and overwhelming one individual, while it produces little or no effect upon another; that it should especially be a certain punishment; I mean certain in its infliction, since certainty is the essence of punishment, as publicity has been said to be the soul of justice; and lastly (since all mankind are liable to err), that it should be a reversible, remediable, or revocable punishment. Does the punishment of death contain within itself these qualities? It appears to me that it is more than other punishments wanting in all of them.
Is it, in the first place, an effective punishment? The frequency of murders in our time does not seem to prove that it is so. It has often been stated, and never, that I am aware, contradicted, that out of a large number of executions, attested by a former Ordinary of Newgate, the great majority were undergone by those who had witnessed 1233 executions. But let us descend from general statements to individual facts. It is no agreeable task to undertake what may be called the morbid anatomy of crime. The mind naturally shrinks from such an undertaking. But it has been my duty to investigate such cases, and I now lay the following extracts from them before the House. Not many years since (in 1846) a criminal, Wicks, was executed at Newgate. He had lately seen an execution. He stated that he was "induced to commit the crime that he might signalise himself as a hero on the scaffold." In 1845 another criminal, Connor, committed murder. He had seen an execution on the very morning of the day on which he committed that murder. A criminal, Mobbs, was executed in 1853. Another criminal was brought before the police office, on the day of Mobbs' execution, for trying to imitate his crime, and (according to his own avowal) "to be executed for it." In 1854, Cumming (a man supposed by many to have been innocent) was executed at Edinburgh. After his execution, another man, Wallace, was taken into custody for perpetrating the same species of crime. A Scottish paper, The Scotsman, states that a number of similar crimes followed the execution of Cumming. But we witnessed, not long since, a remarkable case in Ireland, in which the criminals not only patiently endured, but gloried in, their punishment. Three men, it will be remembered, were executed at Monaghan, for the atrocious murder of Mr. Bateson. They were utterly indifferent to the punishment of death. They eat and smoked just before their execution. One of them stated that, if a reprieve came, he would not accept it. They said that the executioner was doing "the best deed that had ever been done for them." When one of them was asked on the scaffold whether he would say anything, he answered, "No! our Saviour said nothing when he was executed." It may be said that this was the effect of fanatical excitement, under the influence of the Catholic religion. But similar instances have occurred in the case of Protestants. In 1852, Elizabeth Pinckard was executed at Northampton:—On the fatal morning," (says the Northampton Mercury) "she attended prayers in the chapel; when the hymn was being sung her voice was heard above the rest. She went with perfect indifference to execution.On the other hand, criminals possessed of no religious feeling whatsoever, have ex- 1234 hibited the same indifference. Such appears to have been the case with Sarah Chesham, who committed fourteen murders by poisoning, and who never showed any symptoms of repentance or of fear. So likewise, lately, Bartélemi, an avowed unbeliever, died entirely unconcerned; he went to execution not only with indifference, but with a sort of fanatical curiosity. It would be easy to accumulate more instances; but I think that those I have adduced will tend at least to show that the punishment of death is not an effective punishment. Is it an equal punishment? I do not mean to argue that any punishment can be equal in its operation on all men, any more than I mean to argue that any punishment can be equally effective on all. But I say that there are other punishments more equal than this and more effective. Instances of stoical indifference we have already seen. Here are instances of a contrary effect. It is not long since a woman, Martha Browning was executed at Newgate; she fell down insensible; in that state she was executed. At Chester, a woman, Mary Gallop, could not go to her execution; she was carried to the scaffold in a chair, and executed in a state of insensibility. A very painful case of suffering was lately recorded in Jersey, by M. Victor Hugo; on which occasion he addressed a memorable letter to the Secretary of State for the Home Department. In 1851, Thomas Drory was executed at Chelmsford; he was obliged to be supported as he went to execution. We have fresh in our memory the recent case of Bousfield. We remember the prostration of the prisoner; the faltering of the executioner; the miserable struggle between them at the last; and the indignation and execrations of the public. I come now to a very important, perhaps the most important, element in the constitution of a punishment. I mean its certainty of infliction. It is well know that Beccaria, at the opening of one of the chapters of his celebrated work, lays it down as a doctrine that "one of the greatest of all checks on crime consists not in the cruelty, but in the certainty, of its punishment." If the doctrine be true as to crimes in general, it appears to me to be much more applicable to the graver class of crimes, and most applicable to the gravest of all crimes, murder. But, if I may trust to the records of our punishments for a series of years, punishment is much less certain in this single case which remains capital, than in those which are no longer so. 1235 Statistics, however, are the constant subject of dispute; they are the debateable land, the border-ground of controversy. I prefer to appeal to facts. I will first exhibit the operation of the maintenance of capital punishment on our juries; scondly, its operation on our Judges; lastly, on what may be called our tribunal of ultimate appeal, the Home Department. First, with repect to the uncertainty of the verdicts of our juries. In 1847, a woman (already referred to), Sarah Chesham, was tried at Chelmsford for poisoning. The case, a most atrocious one, was clearly proved; but the jury, led by their foreman, an enemy to capital punishment, acquitted the prisoner. The acquittal enabled her to resume her career of poisoning; she practised it with augmented skill, acquired from the evidence of a medical witness at the trial. The victims were her own children. In 1848 she was again tried, and again acquitted. In 1851 she was executed for poisoning her husband. Now, had there been another punishment (such as imprisonment for life) attached to the crime of murder, there is no doubt that she would have been found guilty on the first indictment. All her subsequent crimes would have been checked. All her subsequent victims would have been saved; nor would her example have misled others. For, in 1849, a woman, named May, was also executed at Chelmsford for poisoning; she attributed to the example of the first-named criminal, the crime for which she suffered. Two criminals, Battersby and Wilkinson, were tried in 1851 at York. The proof of murder was, to all common apprehension, clear. The Judge told the jury that it was difficult to believe that the death was caused by manslaughter. Yet the jury returned a verdict of manslaughter. In January, 1852, Thomas Bare was proved, by the strongest evidence, to have murdered his own wife. He even acknowledged that he deserved to be executed. Yet he was acquitted by the jury. The Times of that date thus concludes a leading article: "If there be such a crime as murder, this is murder; and murder of no common atrocity." It adds that (in cases involving capital punishment) "the Judge, Jury, Home Secretary, and public, contend to mitigate the crime of murder." In the case of the Matfen murder, tried on the 27th March last, at Durham, the guilt of one prisoner appeared certain. A juryman, however, told a person, who can be produced, that they all "agreed on a ver- 1236 dict of acquittal rather than the man should hang." In the case of Westron, tried at the Central Criminal Court, in February, 1856, the jury said—We find the prisoner guilty of Wilful Murder. We do not think he ought to be acquitted on the ground of insanity; but we recommend him to mercy, because we find there was a predisposition to insanity.The law of the country could justify no such recommendation. The Times newspaper, of February 8, 1856, calls the verdict "an anomaly in criminal proceedings, and one of most evil precedent." Last year (1855), at Maidstone, during the spring assizes, Elizabeth Avis Lawes was tried for murder. Her guilt was clear. She afterwards confessed it. Yet she was acquitted. The South Eastern Gazette, of that date, says this is "a memorable example of the impunity awarded to murderers." I can produce (if I am allowed to bring evidence before a Committee) instances of jurors having stated that they would have found prisoners guilty, as they were bound to do; but when they learnt from the Judge that the penalty would be death, they resolved on an acquittal. So far for the effect on our juries.
But let us turn to the feelings and opinions of our Judges. Do they not indicate a change with regard to this question, corresponding with the change observable in public feeling and opinion? And first, as to the feelings of our Judges on pronouncing sentence of death. Among other instances, I find the following facts recorded in the journals of the day. At a late trial for murder at Bodmin—The learned Judge, on pronouncing sentence, expressed himself with much emotion: in the last sentence his utterance was almost choked; after completing it, his Lordship burst into tears, and continued weeping for some time.So, in the case of a trial at Aylesbury—During the delivery of the sentence, his Lordship appeared almost choked with emotion.Again, in a case tried at Exeter—The Judge at last came to the sentence; but his sobs, which could be heard all over the court, prevented him from proceeding. He rested his head on his hand, and wept most bitterly. He then, in broken words, and with a voice almost stifled by emotion, pronounced the sentence.I mention these facts (to which it would be easy for me to add more) as highly honourable to our Judges. But they indicate a state of feeling with respect to capital punishment which did not exist in 1237 former times. How different from those times in which Pope could say—Hard words and hanging if your Judge be Page.Can the expression of such feelings by the Judges fail to produce sympathetic feelings on the part of juries and of the public? What effect has it on the mind of the prisoner, and on the minds of criminals in general? Does it not, so far as it extends, add to the uncertainty of the execution of the law by showing the disinclination of our Judges to inflict the punishment of death?
Such, then, are the feelings of the Judges. But what are their recorded opinions? Nine years ago (in the year 1847), a Committee of the House of Lords investigated the subject of criminal punishment. The written opinions of the Judges were taken in evidence. Among the questions proposed to them was this: "Do you think any punishment would be a sufficient substitute for death?" Out of all the Judges of England, Scotland, and Ireland, four delivered their opinions in favour of substituting another punishment. Several declined to give an opinion, or declared themselves doubtful. First, let us take the Lord Chief Justice (Denman). He declines to give an opinion. Next, Mr. Justice Wightman. His answer is as follows:—There can be little doubt that a secondary punishment may be made so severe as to be a sufficient substitute for the punishment of death.
Mr. Justice Coltman
he answers:—I am disposed to think that imprisonment for life, without any remission of the sentence, might be substituted for capital punishment. Many guilty persons now escape who would then be convicted. I do not think the apprehension of death operates much on the mind of a man meditating a great crime.The answer of Lord Chief Justice Wilde is as follows:—The question involves considerations much too grave to warrant a hasty opinion, however great may be the objections to the punishment of death; and, in my opinion, they are very great.From the Irish Bench, Mr. Justice Perrin thus answers the question, "Do you think any punishment, by transportation or imprisonment, would be a sufficient substitute for death?"I do. I am convinced that juries acquit or disagree from an apprehension of taking away life.1238 Chief Baron Richards also answers:—I am inclined to think that transportation attended with stringent regulations might be substituted for the punishment of death. But I cannot say that I have formed a very decided opinion.Now, if nine years ago many of the Judges were doubtful as to the expediency of inflicting the punishment of death, or opposed to it, is it likely that they would be less doubtful or less unfavourable now? Is it not rather more probable that the Judges who have been since appointed, and the Judges who are being appointed from time to time may be still more disinclined to such a punishment; just as the Judges of the year 1847 were more disinclined to it than the Judges of the year 1827? Here, again, is another and an increasing element of uncertainty. Let us now turn to the final tribunal of appeal, the Home Office. Are there no elements of uncertainty here? Do not Members know that if a sentence of death is impending in any of the towns they represent they are frequently called on to interpose? Do not deputations hurry up to London? Are there not those who, resident in London, on almost every occasion, exert themselves to intercept the execution of the law? The hon. Member for East Surrey (Mr. Drummond) has signified his intention of endeavouring to relieve the Home Secretary from this assiduity of intervention. But, with great respect for the hon. Gentleman, I think he is undertaking nothing less than the task of the Danaids. For my own part, I feel bound to testify, on behalf of those who make these applications, their sense of the ready attention of the right hon. Secretary to every fact which may tend to mitigate the sentence. Nevertheless, the public do not understand on what principle some criminals are executed, after appeal to the Home Office, while others, apparently of equal guilt, escape. We all remember, a few years ago, the case of Annette Meyer. There appeared to be, in her case, full premeditation of the murder. Yet she escaped the punishment of death. Not long since, the case of Corrigan, whose sentence was remitted, called forth the animadversions of the press and of the public. Still more, the recent case of Celestina Somner. She coolly and cruelly premeditated and prepared for the murder of her child. Few instances of more unrelenting cruelty have been recorded. Yet she, too, escaped. After this and similar cases, I 1239 doubt very much whether you can long continue to execute women. You may try to bring us back to the ancient rigour of the law. It will be in vain. The evil lies not in the administration of the law, but to the nature of the punishment awarded by the law. Here, in my opinion, is the source and origin of the evil. The power of the executive at the Home Office is enfeebled by the awful responsibility involved in the punishment. This is in itself an element of uncertainty. But there are others. Different Secretaries may be of different minds. The present Secretary may be of a lenient, his successor may be of a severer character. A crime which would escape the punishment of death under the one would incur such punishment under the other. Again, the Secretaries of State generally refer the case back for reconsideration to the Judge who tried it. Judges differ in their characters as Secretaries do. A sentence which one Judge might mitigate, another Judge might be determined to maintain. Here, again, arises another cause to be added to the various causes I have already cited of the uncertainty of capital punishment.
I have said that an essential ingredient in the character of a punishment should be its reversibility; its revocable or remedial nature. It is not likely that, in these times, the execution of an innocent person can occur. Nevertheless, though not likely, it is not impossible. For felonies inferior to murder, but of an aggravated character, it is easy to cite instances of innocent persons having been punished. They have been brought back from transportation, and their sentences have been revoked. I have myself brought such cases under the consideration of this House. The case of Eliza Fenning, executed many years ago for the alleged crime of attempting to poison the family of her master, a crime of which she was afterwards shown to be innocent, is familiar to most of us. But, more recently, in the case of Mr. Bateson's murder, two men, the Kellys, were twice or three times put upon their trial for life for that murder, under the sanction of the most eminent of the Solicitors and Attorneys General for Ireland. The two Kellys were seen to run across a field after the shot was fired; they were entirely innocent, yet they might have been convicted—and of one of them, it is stated in an Irish paper, that he has since died of a broken heart 1240 in consequence of the prosecution. Three other men were afterwards proved to have committed the murder. A very short time ago a man named Cummings was executed at Edinburgh. He is now generally believed to have been innocent. Such are the dangers which attend an irremediable punishment.
These, then, as I have classed them, are the principal impediments to the execution of capital punishment. The question naturally suggests itself—whence in all their stages arise these impediments to the law? How comes there to be this consentaneous restriction by juries, by Judges, by the Home Office, and the public, to the infliction of the sentence of the law? I believe that these impediments arise from two causes. No punishment has been found to be an approved or lasting punishment which contains in it the principle of retaliatory revenge. We know that in the time of Queen Elizabeth the punishment of branding was adopted—it could not be maintained. In the same way the punishment of the pillory and other ignominious punishments have speedily or gradually vanished. In more remote times we find the principle of retaliatory vengeance carried to its greatest excess. Yet in those times, crimes abounded. Capital punishment is nearly the last trace which we retain of the principle of retaliatory revenge; and the more we advance in civilisation, the more deep our religious feelings become, the greater will be our repugnance to the punishment of death. Another, and an inconquerable objection, arises from the irremediable nature of the punishment. Never, while human nature exists, never will you induce mankind to view a punishment which cannot be remitted or recalled in the same light in which they view a remissible or revocable punishment. This objection, too, will infallibly increase as society advances.
Such appears to me to be the real causes of the non-execution of the law.
But what remedies have been proposed? A distinguished and right rev. Prelate (the Bishop of Oxford) has lately suggested the consideration of a new mode of conducting executions. They are no longer to be witnessed by the public, but by a sort of deputation on behalf of the public. This system would, no doubt, exclude the evils arising from a vast congregation of the people, their vindictiveness, or their indifference, their profaneness, their revelry, and their crimes. Nor can it be doubted 1241 that these evils are aggravated by the facilities of intercourse in modern times. Even now, I am told, special trains are announced in the newspapers as about to run to and from Stafford to enable the public to witness the last moments of an expected victim. All these, the mere external evils of publicity, will be removed by the change proposed. But publicity, in modern times, does not consist so much in seeing, as in reading an account of what occurs. A few thousands witness an execution, many millions read of it. You may exclude the public, but you cannot exclude the press. The interest taken in an execution will continue to exist. It will even be aggravated and stimulated by concealment. Public curiosity will rush the more eagerly per vetitum nefas. The most minute details will have to be recorded; more minute, if possible, than those which are recorded now. By adopting this change you will have only veiled, not removed, the evil. Another system proposed is very nearly the one prevailing now; that of occasional executions. In the first place, this system abandons the principle of a fixed punishment for murder. It substitutes a possibility of execution for a certainty of execution. It encourages a species of gambling in crime. When you have arrived at occasional punishment, you have abandoned one fixed punishment, and you have not arrived at another fixed punishment. This is a most vague and fluctuating, and consequently a most impolitic and unjust, state of the criminal law. Now, what remedy do we venture to propose?
We suggest the substitution of a lesser punishment attended with comparative certainty of execution, for a severer punishment attended with uncertainty. And we rest our cause on those words of the illustrious Beccariáa:The certainty of a more moderate punishment will always produce a greater impression than the fear of a more terrible punishment, accompanied with the hope of impunity.This is our principle. We, not you, are the real friends of effective punishment for crime. You call us false philosophers, theorists, and speculative reformers: while we in fact pursue a clear, practical, and decided course. It is you who, by lingering in a system no longer maintainable, enfeeble the arm of justice and promote impunity for crime.
We have not proved theorists as to the other numerous cases (of forgery, of house- 1242 breaking, of stealing in dwelling-houses, of cattle-stealing) for which we have induced you tardily and unwillingly to abolish the punishment of death. In not one of those cases can an advocate be found for the restoration of capital punishment. But we also appeal to the example of foreign countries. If foreign nations can successfully abolish capital punishment, why should not we? The case of Tuscany, under Leopold II., has often been referred to. The successful repeal of the punishment of death in Tuscany (dated November 30, 1786) has never, that I am aware, been denied. And, though in the first excesses of the French Revolution capital punishment was revived, it appears since that time to have been gradually dying out in Tuscany. In 1838 the unanimous consent of the Judges was required for its infliction. This enactment amounted almost to abolition. In 1847, the Grand Duke abolished it in the Duchy of Lucca, and in 1849 he sanctioned the Decree of the Provisional Government which had suppressed capital punishment in Tuscany. It appears from the writings of the Rev. Mr. Townshend, that in Bavaria, reformatory discipline and imprisonment are successfully substituted for the punishment of death. In Switzerland, capital punishment has been abolished in the cantons of Freiburg and Neufchâtel. In Freiburg, the abolition took place eight years ago. My informant, a member of the Legislation of Neufchâtel, assures me that crime has not increased there; while, in the canton of Berne, where executions are frequent, great crimes are frequent also. In Neufchâtel, the repeal of capital punishment is more recent. So far, I understand, it has given general satisfaction. Let us now turn to America. From a speech of Mr. Andrews, delivered before a Committee of the Legislature of Massachussets, March 22, 1855, I learn that, "Alabama abolished capital punishment many years ago." He adds "the experiment may be considered to work well in Alabama." The State of Michigan led the way in the career of total abolition. The Secretary of State (as quoted by Mr. Andrews) says, in 1846,It has produced a greater certainty of conviction, consequently of relief to the community, lessening the number of aggravated offences. There is no probability of a return to the old law.This is the result of an experiment of nine years in Michigan. Of Rhode Island (where capital punishment appears to have 1243 been repealed in 1851) the Hon. P. R. Hazard, of that State, observes,I believe there were pending before the Court of Providence County, no less than six indictments for murder. Since the passing" (that is the repeal of the punishment of death), "I do not remember that there has been more than one indictment for murder in the first degree.The Act for abolishing capital punishment was passed in the Senate by only a majority of 4. When it was attempted to restore capital punishment, there was a majority of 30 to 7 against its restoration.In the State of Maine" (says Professor Upham) "it is now twenty years since capital punishment was inflicted. It is understood to be practically abolished. I have heard no wish in any quarter to restore it.On all these facts, and more, we offer evidence, if you will consent to grant a Select Committee of Inquiry.
We propose then to establish, both by reasoning and facts, that the change we suggest, would lessen impunity to crime by annexing greater certainty to punishment. We offer more than this. We say that in a free State, the effect with which a punishment acts, is combined of two forces; the direct force of the punishment itself, and the additional force of public opinion. If both coincide, if they strike with united power, you inflict the whole accumulated force of punishment. If you separate them, the weight of the punishment is broken and intercepted. It is met and defeated by the counteracting influence of public opinion. It falls a tetum imbelle sine ictu: a large portion of your power of punishment is gone. We offer to restore to its natural authority this combination of the law and of public opinion. We offer you more than this. What is it but the punishment of death which gives a sort of false pre-eminence to crime? You are wont to call us sentimentalists. It is you who, by continuing this excess of punishment, give a factitious interest to crime. You invest it with somewhat of the dignity of death. We ask you to expose it in its native deformity. Reason and morality proclaim the criminal a villain. The punishment you inflict converts him into a kind of felonious hero.
What has been the result of abolishing capital punishment for other crimes? There was a time when even the highwayman's fate was invested with a kind of mockheroic dignity. He was then capitally punishable. Since he is no longer so, this false feeling has vanished. There was a 1244 time (many of us can remember it) when the forger was raised to this bad eminence. Such was the case of Dr. Dodd; such, more recently, was the case of Fauntleroy. But since forgery is no longer capitally punishable, the forger has sunk into unmitigated disgrace. Why is this? It is because in these cases you have ceased to create a counteracting public feeling, by ceasing to inflict the punishment of death. Both the criminal and the crime are visited by the undivided weight of legal punishment, and of public indignation.
Again, what is the effect of this penalty on the criminal? Does it not avert his mind from the sanguinary crime he has committed, and lead him to dwell on the sanguinary punishment he is about to undergo? Instead of concentrating his conscience and his thoughts on the past and on the future, you confine his mental vision to the horrors of the present. You drive him to the dread alternative of seeking, like the fallen spirits of Milton,What re-inforcement he may gain from hope,If not, what resolution from despair.We ask you, in the case of the criminal, as in the case of the public, to concentrate their undivided attention on the magnitude of the crime. We ask you no longer to pass an irrevocable doom, but one which, if erroneous, may yet be recalled. You banish, by the present system, or you greatly tend to banish, the solemn, yet consolatory spirit of repentance. We ask you to revive it in the holy ministrations of religion, and in the solitude and silence of the cell. Finally, we adjure you to remove from your Courts of Law (if I may borrow a phrase from Cowley) this "scare-crow deity" which has so long dishonoured and deformed them; to replace it by the unstained effigy of justice; to substitute for the last vestiges of a barbarous code, the precepts of a milder wisdom; and to breathe into the laws of your country, the pure and peaceful spirit of the Gospel.
§ MR. HADFIELD,
in seconding the Motion said, he thought that the feeling of the country was in favour of the Motion. The object of the hon. Member was not to do away with punishment, but to make it effective, and bring criminals more effectually under the power of the law. Was it not appalling to hear of executions attended by thousands and tens of thousands of people? Nothing could be more repulsive to any one wishing well to the administration of justice. He had seen in 1245 his own county at least thirty persons brought up to receive a sentence of death that was never intended to be carried out. Subsequently the ceremony of sentencing to death in such cases as those to which he alluded was dispensed with, and the sentence merely recorded in the books of the Court. There had been no execution in the country, except for wilful murder, saving in one case, since 1841. That exceptional case had been alluded to by his hon. Friend. He (Mr. Hadfield) rejoiced that he was not the man with whom the responsibility of Palmer's death rested. At the same time he admitted that the power to reprieve could not be placed in better hands than those of the right hon. Baronet who at present filled the office of Secretary of State for the Home Department. To assent to the Motion of the hon. Gentleman (Mr. W. Ewart) would be to follow the course which was commenced by those great men, Sir Samuel Romilly, Sir James Macintosh, and Sir Robert Peel, with whom he would now associate the hon. Member for Dumfries. The passing of sentence of death frequently gave rise to the most painful scenes in court. There were instances of mere children having been tried and convicted to capital punishment. In one of those cases Mr. Justice Talfourd covered his face with his hands and sank back upon his seat with grief. It was desirable the Committee should be granted to ascertain whether the punishment of death bad been instrumental in procuring that which its advocates supposed to be accomplished by this severe punishment, or whether it had not a contrary effect, and a tendency to brutalise society at large. He therefore trusted the House would grant the Committee.
§ MR. DRUMMOND
said, he would venture to occupy the time of the House for a few minutes—not certainly with the presumptuous idea of interfering to convert public opinion, because he had not the presumption to imagine that, in the year 1856, for the first time since the creation of the world, men were about to learn how they should punish for crime. Men having, through all ages and at all times continued the punishment of death, it appeared to him to be monstrous presumption to pass so sweeping a censure upon all that had been done in former times. The hon. Mover had stated that as it was impossible to prevent the course of justice being occasionally impeded and the judg- 1246 ments of tribunals defeated, therefore capital punishment should be abolished. A Select Committee was asked for to inquire into the operation of the law imposing the punishment of death. Why, what could be the operation of that law, if carried out, but simply death? That would be its operation if it were allowed to operate, but if persons chose to intervene then it would not act at all. The hon. Gentleman had objected to the introduction of religion upon this matter, but nevertheless had the hardihood to declare that the punishment of death was contrary to the spirit and practice of the Gospel. But surely there could not be a sentence expressed in plainer words than that which said, "Whoso sheddeth man's blood by man shall his blood be shed." It was absurd to hold forth the Bible as the religion of Protestants if they were to set aside plain words which could not be controverted, and upon which their law should be founded. It was argued, however, that the words applied to a Jewish people and not to Christians; but he (Mr. Drummond) had heard of a bishop, somewhat famous in Christian history, who, when a man told him a lie, immediately struck him dead, and so far from repenting of the act soon after administered the same punishment to that man's wife for a similar offence. What would Exeter Hall say if a bishop were now to strike a man dead for a lie? The hon. Gentleman (Mr. W. Ewart) said that the evil of punishment of death was its uncertainty. Why, what could be so certain? The hon. Gentleman meant, perhaps, it was not with certainty carried into effect. Was that what he meant? And he proposed to substitute for this punishment of death perpetual imprisonment. Had the hon. Gentleman any argument to show that that punishment of perpetual imprisonment would be with certainty carried into effect? The same argument on the ground of uncertainty would apply against any other species of punishment as well as against that of capital punishment. The hon. Gentleman had appealed to the opinion of jurors. The hon. Gentleman and those who acted with him had told juries to prepare themselves. That was the effect of their glorious teaching; that was the effect of their poisoning the public mind. The hon. Gentleman promised them increased civilisation and increased intelligence if they put an end to punishment by death. He said that the science of poison had made 1247 such rapid strides it was now impossible to detect the presence of poison. Was that a reason for giving increased facilities to poisoners? The hon. Gentleman the Member for Sheffield (Mr. Hadfield) had told them that Judges sometimes wept while pronouncing sentence of death, and both that hon. Gentleman and the hon. Member for Dumfries called on the House not to subject Judges to so disagreeable a task. However, both those hon. Members had been supporters of the late war. Where were their horrors at the duty which the generals engaged in that war had to carry out? Were they desirous of putting an end to war? Did they think that their generals and colonels had no feeling when giving orders that doomed men to destruction? Pictures more horrible than anything that could be drawn at public executions might be painted of scenes in every way. He had thought it right, in answer to the Motion of the hon. Member for Dumfries, to put on the paper a notice of his intention to suggest that some means should be taken to relieve the Secretary of State from the importunities to which he was subjected from persons who sought to get reprieves for criminals sentenced to capital punishment. He (Mr. Drummond) had been acquainted with the late Sir Fowell Buxton, and he had never met him but he found he was engaged in some scheme to get off some scoundrel under sentence of death. On the first occasion of his meeting his late Friend, he was on an expedition of that sort to the then Secretary of State for the Home Department, Sir Robert Peel. He (Mr. Drummond) asked him was there any doubt of the prisoner's guilt? His friend replied there was not. He (Mr. Drummond) then asked him why he interfered? The hon. Gentleman replied that he felt it his duty to interfere. The next time he met him he was visiting the prisons of Rome, and he went to the Pope to beg, some of the prisoners off. Now, he had no doubt that the Pope told him to mind his own affairs. The last time he met his friend, the right hon. Gentleman the Member for the University of Cambridge (Mr. Walpole) was Secretary of State for the Home Department, and the gentleman in question was, with others, about to wait on him on behalf of a criminal who had committed an atrocious murder at Bath. In that case the Judge had expressed his approval of the verdict of the jury; and he (Mr. Drummond) refused to accompany 1248 his friend and others to the Secretary of State, for which refusal his right hon. Friend (Mr. Walpole) thanked him for not countenancing the deputation. The House might judge of the importunities to which a Gentleman in the position at present occupied by his right hon. Friend (Sir G. Grey) was subjected. There was at present a petition, to which signatures were being obtained, and which was to be presented to his right hon. Friend. In that petition the fellows who signed it stated that they were not satisfied with a certain trial. How could they be? They had not been the jurors; they had not been the Judges—how could they know anything about the matter? Then came Mr. Herapath. He (Mr. Drummond) would not say what Mr. Herapath's opinion was about, for it was not worth much, unless he (Mr. Drummond) was greatly misinformed. A right hon. Gentleman was present who could contradict him if he was wrong in stating that on a particular occasion, when the right hon. Gentleman was Secretary of State, Mr. Herapath importuned him to stay an execution, because he was sure that a certain drug had not been used. Well, it turned out that at the very moment when Mr. Herapath was so importuning the Secretary of State, the criminal was confessing to having committed the crime. Was it not heartrending that the Secretary of State should be put in such a position and subjected to such a pressure? Originally a person tried in the country was left in the custody of the sheriffs, with a mark opposite his name if he were to be executed, and the sheriffs saw that the sentence was carried into effect. In London the sentence was reported to the Recorder, who reported it to the Sovereign. However, that system had since been altered. Now, what he (Mr. Drummond) proposed was, that when a respite was sought for, reference should be made to a Commission to which the Crown could refer cases in which reconsideration might be deemed necessary. That body might comprise the President of the Council, the Judge who tried the case, the Lord Chief Justices of the Queen's Bench and the Common Pleas, and the Lord Chancellor; and, if it should appear to them that fresh evidence had been discovered, then they could advise the Crown to interpose. He (Mr. Drummond) did not seek to interfere with the prerogative of the Crown. The Sovereign might make the whole regiment of Horse Guards dukes 1249 if she pleased; she might pardon whom she pleased; but he did say the matter should not be left as it was at present. There should be some better organised machinery that should have a complete surveillance of sentences, and, if no sufficient reason for staying the execution of the sentence should be shown, then that the sentence should be carried into effect.
§ MR. BOOKER-BLAKEMORE
said, that some years ago he happened to fill the office of sheriff in the Principality of Wales, and it was his duty to sit side by side with a learned Judge upon the trial of two individuals for murder. A more humane Judge could not have existed, and a more painstaking jury could not have been empanelled. He watched the case with the deepest interest, and arrived at the deliberate conviction that both men were perfectly innocent. To his horror the jury pronounced them guilty, and the Judge condemned them to death. By great exertions and the assistance of friends he obtained the release of one prisoner, but he regretted to say that the other had ever since been undergoing an undeserved sentence in a penal colony. He drew from that experience the conclusion that there was wide room for the inquiry which the hon. Gentleman (Mr. W. Ewart) invited the House to undertake. He thought there was good reason for preventing importunities of the Secretary of State by an amended system, and he should, therefore, support the Motion of the hon. Member for Dumfries.
§ SIR GEORGE GREY
Sir, as I have had occasion three or four times previously, when I held the office which I now have the honour to hold, to state the views of Her Majesty's Government upon this subject, I am afraid I can offer nothing new in argument against the Motion of the hon. Gentleman the Member for Dumfries. The House has on all former occasions concurred with me in rejecting these Motions, and I must express my earnest hope that, for the sake of the protection which the law and the execution of the law throw around society against the destruction of human life, they will reject this Motion of the hon. Member. The hon. Gentleman's Motion is slightly varied in terms from those which he formerly submitted to the House. He has on former occasions submitted a Resolution as to the expediency of abolishing capital punishment, or he has asked to be allowed to lay a Bill on the table for that purpose. On 1250 the present occasion the notice originally given was framed in similar terms, being for the entire abolition of capital punishment. But within the last few days, influenced perhaps, by circumstances which have occurred, inducing him to think that a Motion pledging the House to the abolition of capital punishment was little likely to meet with acceptance, he has changed the form of his Motion, and now asks for a Committee to inquire into the operation of the law which imposes the punishment of death for offences still capital. Now, Sir, I confess I can see little substantial difference between the Motion now submitted and the Motions which have been submitted by the hon. Gentleman on former occasions. By his speech the hon. Gentleman asked the House to consent to the abolition of the punishment of death, and the substitution of what he terms a less cruel punishment; and, if the House were to agree to the Motion now proposed, I must say that, coupling it with the speech of the hon. Member, it would be understood by the country to be the opinion of the House of Commons that it was expedient the punishment of death should not be continued, and that the House was prepared to agree to a measure for its abolition after this Committee should have made its Report. I think, Sir, that would be a very dangerous course for this House to adopt. In one point I am in perfect agreement with the hon. Member who made this Motion. He said, let us discard the theological grounds, and consider the question simply as one of expediency A preliminary objection to entertaining the question of abolishing capital punishment has been sometimes founded on theological grounds by those who say that under the Divine law it is imperative, and that the text quoted by the hon. Member for West Surrey (Mr. Drummond) makes it obligatory on the State that where murder is committed the punishment of death shall follow, Now, Sir, I do not go with those who hold that doctrine. Neither do I go with those who hold that the punishment of death, established by any civil Government or State for that purpose which alone justifies it, is contrary to the law of God. If, then, we are to discard theological grounds, the hon. Gentleman (Mr. W. Ewart) must reject altogether the aid which he summoned from the petition which was read at the table, and which stated that the Gospel of Christ recognises the inviolability of the life of man, and the petitioners therefore express their 1251 opinion that it is contrary to the Gospel to inflict capital punishment for any crime. The hon. Member has two alternatives—either to admit the theological grounds, and encounter those who object, on alleged scriptural grounds, even to consider the question of abolishing capital punishment for murder, or to reject the theological grounds, and give up the support of those who petition for its abolition as objectionable and unlawful, because in their view it is opposed to the spirit of the Gospel. One other preliminary observation as to these petitions—a good many have been presented for the total abolition of the punishment of death, and none have been presented against such abolition. Now, I will admit that if it were a case of an ordinary kind, a strong inference might be drawn that public opinion ran strongly in one direction, and that it was the general desire of the country that capital punishment should be abolished. That inference cannot, however, be legitimately drawn in this instance. There are numbers of persons who, actuated no doubt by feelings of humanity, devote their time and their best exertions to procure the abolition of the punishment of death. They get up petitions upon the subject. Many of the petitions bear so great a similarity to one another that, in fact, they are almost stereotyped in the same terms. They express, no doubt, the opinions of those who sign them. But a feeling of humanity in men's minds deters them from asking that capital punishment shall be enforced, and thus it is that in particular cases importunity is always one-sided. As long as a man is suspected of being guilty of an atrocious murder the feeling of the people is against the criminal and with the law. They are anxious that no means shall be omitted which can insure the conviction of the prisoner, if he be guilty of the crime of which he is charged. But the moment he is convicted and sentenced to punishment, be it death or transportation, a certain number immediately sympathise with the criminal, look upon him as an object of pity, and exert themselves to obtain a commutation or remission of his sentence; while, on the other hand, no one petitions that the person on whom sentence is passed shall not be recommended to mercy. Public feeling is not expressed accurately. The opinion against remission is, in many cases, strongly but silently entertained. Do not let us, therefore, suppose that the real feeling of the people is expressed by petitions on this subject. One 1252 other preliminary observation. When the hon. Member for Sheffield (Mr. Hadfield) enumerated the names of great men who assisted benevolent persona like the hon. Member for Dumfries in their exertions to mitigate the severity of the criminal law, he mentioned those of Sir Samuel Romilly and Sir Robert Peel; but history and Parliamentary records prove that, although they were favourable to removing capital punishment from a great many crimes, the hon. Gentleman is in error in supposing they were among those who ask that in the case of a person guilty of the atrocious crime of murder he shall not suffer death as the punishment of that offence. My hon. Friend the Member for Dumfries placed this question on the ground of expediency, and asked, is it desirable to retain the punishment of death for murder? He has defined what he conceives punishment ought always to comprise. He said, first, that it should be effective for the repression of crime; secondly, that it should be equal; thirdly, that it should be certain; and, fourthly, that it should be revocable. Following those points, relying chiefly on the first—namely, the efficiency of the punishment, I must express my opinion—an opinion which I strongly entertain, which is confirmed more and more by reference to statistical records, and which rests on the inward conviction of every man's mind, that is not capable of being refuted—that the punishment of death is looked to with greater dread than any other punishment, and is more effectual than any other in repressing crime. I observe that, at the meeting held in the City yesterday, from which a petition has to-night been presented, it was stated as evidence of its inefficiency, that whereas all those crimes with regard to which the punishment of death was repealed had diminished, the crime of murder, for which it was retained, had increased. Now without going into statistics, I may state at once that the contrary is the fact. My hon. Friend must give me leave to state to him, that he is mistaken in supposing that his statistics warrant the conclusion that the abolition of capital punishment has caused a diminution in the number of those offences to which the penalty of death was at one time attached. Not only is that not true, but the very reverse is the fact. Robberies, burglaries, and other felonies of the secondary class have increased in number, and progressively so, since the punishment of death has been abrogated. The crime of murder, on the contrary, has remained 1253 about stationary, but stationary, be it remembered, in relation to a population which is rapidly increasing. The number of persons, committed not convicted, on charges of murder in the year 1845, was sixty-five; in 1854 it was sixty-two. The difference is scarcely appreciable, yet the population had increased in the interim by nearly 2,000,000. Some of the intermediate years show a trifling excess, but it is so very small as scarcely to admit of its being taken into calculation, and upon the whole we are justified in estimating that the crime of murder is rather upon the decrease than the increase. This shows that, let theorists say what they will, the fear of an ignominious death as the punishment of murder does deter some persons from the perpetration of that awful crime. Nor let it be supposed that there is any intention to exempt women from that punishment. During the last ten years fourteen women have been executed for murder, and of these I grieve to say that ten forfeited their lives during the period that I have held the office of Home Secretary. In the year 1849 no fewer than five women were brought to the scaffold. This being the state of the case, I hope that no erroneous opinion will get abroad that women may commit murder with impunity. The next point on which my hon. Friend insisted was, that punishment should be equal, and in this respect he deems the penalty of death defective. He told us that some Criminals go to the scaffold without appearing to feel their dreadful position—that they are obdurate, hardened, impenitent, and were anxious to be regarded as heroes; whereas others are so overcome with shame and terror that at last they lose motion and consciousness, and have almost to be dragged to the gallows. But can my hon. Friend suggest any punishment, whether transportation, imprisonment, or penal servitude, which will not be liable to this objection of inequality? If you sentence to transportation a man surrounded by all the luxuries of life, having a wife, children, and friends, to all of whom he is tenderly attached, the punishment will certainly fall upon him with crushing severity; but it will not have the same effect on a man in humble life, who, unmarried and childless, has no friends and relations for whom he cares. This objection of inequality, therefore, is one which applies with equal cogency to all kinds of punishment as well as that of death; therefore, the idea of an absolute equality of punishment is altogether Uto- 1254 pian. But then my hon. Friend urges the argument of "certainty," and contends that the particular punishment annexed to an offence ought in every case to be inflicted. Now, Sir, that is a doctrine which would be found very difficult of application. The law of itself affords a very liberal discretion to Judges as to the period of imprisonment or penal servitude that may be awarded for a stated offence. That which is in the eye of the law the very same crime may be visited with punishment of very different degrees according to the varying circumstances of each particular Case. And so with regard to murder; it is impossible to overlook the vast difference in the degrees of guilt that two cases may present. We may imagine a case of the most deliberate and cold-blooded assassination, and we may picture to ourselves another case where, though the jury found the prisoner guilty of murder, his offence was, in point of fact, scarcely distinguishable from manslaughter. If by "certainty," then, you mean that, without reference to the distinctive circumstances, the same punishment shall in each case be inflicted, you will lay down a rule which will be productive of great injustice. It is no uncommon occurrence that, even after the trial has terminated, circumstances not known at the time come unexpectedly to light, which justify an exercise of the Royal clemency on behalf of the condemned person. If this be an evil, will it be remedied by substituting imprisonment or transportation for capital punishment? Assuredly not, for the Royal prerogative will remain untouched. My hon. Friend advocates the infliction of such a punishment as imprisonment for life in the case of murder, making it irrevocable and irremediable, and yet—strange inconsistency!—he objects to capital punishment for the very same reason. The theory is, that a sentence of imprisonment has this advantage over one of capital punishment, that it may be revoked in the event of its being discovered that the verdict was unjust; yet my hon. Friend, from the tenor of his arguments, would destroy that theory and doom to imprisonment without hope of emancipation. With regard to juries it appears to me that my hon. Friend has very much over-stated his case. He would have us believe that one of the consequences of annexing capital punishment to the crime of murder is that juries frequently refuse to convict, even on the clearest evidence. There may have been a few such cases— 1255 though for my own part I know of none—but I am sure that it is true as a general rule that, where the evidence is clear and conclusive, and when it has been laid before the jury with that lucidity, happily so characteristic of the charges of English Judges, juries return a conscientious verdict, and do not disregard the solemn obligation of their oath through a disinclination to pronounce a verdict the consequence of which may be death to the prisoner. No doubt the knowledge that such may be the result of the verdict may make juries and even Judges more willing to present a case to their own mind in the point of view most favourable to the accused, so that they may avoid a mistake that can never be remedied. There have been many cases in which the line between murder and manslaughter—being a very nice one—a verdict of manslaughter, although the evidence might have justified a verdict of murder, has been returned; but it cannot be said that the ends of justice have been defeated by such a result. In that event, the punishment inflicted is what my hon. Friend would award in every instance—that of penal servitude, or transportation, and generally for life. The emotion manifested by Judges in sentencing prisoners to death has really nothing to do with the question. It must be distressing to a Judge to doom a fellow-creature to an ignominious death on the scaffold; but my hon. Friend has failed to mention any occason on which a Judge has shrunk from the performance of that duty, however painful it may be. With respect to the office of Home Secretary, which I have the honour to hold, I admit with the hon. Member for West Surrey (Mr. Drummond) that there can be no duty more painful than that of receiving the importunate applications made for mercy between the time of passing sentence and that of carrying it into effect; and assuredly there is no duty which requires to be more firmly performed than that which involves the careful examination of the grounds on which such applications are urged. In cases of this nature the Home Secretary, assisted by that legal advice which is always available, puts himself in communication with the Judge who presided at the trial. In the great majority of cases there are no difficulties. If the evidence at the trial was incontrovertible, and if the application does not rest upon matters which have subsequently come to light, but simply upon the general objections which certain well-meaning per- 1256 sons entertain towards capital punishment in any form and under any circumstances, the course to be taken by the Home Secretary is clear and does not admit of doubt. Other cases there are, in which the Judge represents to the Government that there are circumstances which render it advisable that the extreme penalty should not be inflicted, and in such cases the Secretary of State is in a great measure relieved from responsibility. But no doubt the duty and responsibility of the Secretary of State have been much increased by a humane alteration of the law made in the last year of the reign of William IV., when a Bill was passed repealing the law by which it was provided that in cases of murder the sentence should be carried into effect on the next day but one after conviction. At that time there were not the same facilities of locomotion as at present, and in many instances the law precluded the possibility of an appeal to the Home Office; the sentence having been carried into effect before it could be known to the Secretary of State to have been passed. There is now a considerable interval between the sentence and execution, during which strong representations and statements of facts, or alleged facts, are sometimes laid before the Secretary of State, even within a few days of the execution, and which, if true, may have an important bearing on the guilt or innocence of the prisoner. Such memorials are referred to the Judge who presided at the trial, with a request that he will send his report on the subject. An instance of this occurred within my own official experience. Great difficulty presented itself in dealing with the statements founded upon affidavit made to the Home Office, and the convict was respited for a week, an intimation being given at the same time to the prison authorities, to be communicated to the convict, that this step did not justify any expectation that the sentence would be remitted, but was only intended to enable the truth of the representations made in favour of the convict to be properly investigated. In some cases of that kind it has turned out that the affidavits were good for nothing, their allegations breaking down as soon as they came to be investigated before the magistrates on the spot, and the sentence was therefore executed. In some instances, however, statements of the previous history of the criminal, of the peculiar circumstances under which the crime was committed, and other considerations which cannot be very 1257 easily explained, have been brought under the attention of the Government, and received that weight to which they were entitled. Some deference must also be paid to public opinion, which cannot be wholly disregarded without enlisting the sympathy of the people on behalf of the criminal an against the law; and the rule, therefore, to be observed is so to administer the law that public opinion shall go along with its enforcement, and that where a prisoner has suffered the extreme penalty it may be generally felt that nothing that told in his favour was overlooked, and that his execution was fully justified. At the same time, if the hon. Member for West Surrey can suggest a mode by which the responsibility of the Secretary of State shall be lessened he will confer a very great boon on the occupant of an onerous office. Yet I know not how that responsibility can be transferred to other hands, and therefore, while I hold my present situation, I can only say that I shall continue to exercise the power intrusted to me impartially, firmly, and to the best of my ability, with an earnest desire to render the law efficacious for the repression of crime. My hon. Friend (Mr. W. Ewart) says that as the science of chemistry advances the difficulty of detecting murder by poisoning will increase. That is a most dangerous doctrine; but, happily, it has no solid foundation. The crime of poisoning by arsenic used to be very common, but it has been checked, because the progress of chemical research enables it to be discovered with certainty. Such, I believe, will be the case with other poisons, and I maintain that the chances of detection are infinitely augmented, not diminished, by the improvements of science. I need not touch on public executions, since they do not enter into the question whether or not the punishment of death ought to be retained. The objection that executions are vindictive, retaliatory, and revengeful, if it has any force, applies equally to every other mode of punishment. How is there more of a retaliatory spirit evinced in putting to death a man who has taken away the life of a fellow-creature than in immuring him in a prison for life? My hon. Friend himself says the latter is the severer punishment of the two. If that be so, according to his own argument his substitute for the punishment of death must be more revengeful. My hon. Friend has, in my opinion, adduced nothing from the example of other countries that should prevail upon us to depart from our established law. I believe that death 1258 is the punishment which men most dread, and that it is the right and the bounden duty of the State to inflict it for wilful and deliberate murder. On these grounds I hope the House will not accede to this Motion.
§ MR. LIDDELL
said, that the hon. Member for Dumfries had urged as a strong reason, in favour of his Motion for a Committee, the difficulty of bringing public opinion to bear upon the question—that was to say, unanimously; but where was the country in which free discussion existed to such an extent, and where could public opinion be brought to bear upon any question by means of an unshackled press, more powerfully than here? The hon. Member seemed to have confounded public opinion with private judgment, and not to have allowed the weight to which they were entitled to the opinions of our lawgivers, and to the customs and usages of the country in reference to this question. Now, Judge Blackstone, a great authority upon this subject, said, that when the question arose whether death might be lawfully inflicted, the wisdom of the law had to decide it, and that to this public judgment or decision all private judgment must submit, or else there was an end to the first principles of all society and government. The onus probandi rested on the assailants of the existing law, who were bound to show that some other mode of punishment than death would operate as a greater preventive of murder. Those who were in favour of the abolition of capital punishment did so upon the ground that statistics proved that it did not act as a preventive of crime. But the House should consider, in regard to these statistics, how many things acted upon the sources and causes of crime. The circumstances of a county, its state in any particular year, the want of occupation for its inhabitants—all these things tended materially to affect the calendar of crime. Consequently, such statistics were not very safe or reliable guides for legislation upon the subject. After some further observations, which the continuous calls for a division rendered altogether inaudible, the hon. Gentleman concluded by stating that he should vote against the Motion.
§ MR. BROTHERTON
said, he could not allow the debate to close without offering his tribute of thanks to his hon. Friend the Member for Dumfries for bringing this subject again under the consideration of the House. The question was a most important one, and although it might not be 1259 popular in that House, he had no hesitation in avowing it as his conscientious opinion that capital punishments were contrary alike to the law of God, the spirit of the Christian religion, and to sound policy. The object of punishment must be either to reform the criminal, make reparation to society for the injury done, or to deter others from the commission of crime, by the example afforded. It could easily be shown that capital punishment did not produce any such results. It was recorded as a fact that out of 167 persons who had been sentenced to death, 164 had witnessed executions. Formerly, men were hanged for forgery and many other minor offences. The improvement in public opinion on this subject might be illustrated by a case that occurred in the year 1814, when a man was executed at Chelmsford, in Essex, for cutting down a cherry-tree. It was reported that the Judge on that trial observed, that a man who would cut down a tree maliciously, would not hesitate to kill a man. No Judge at this day would utter such a sentimept. He trusted that public opinion would improve still further, until the punishment of death was finally abolished. In his opinion it was of the greatest importance that the laws and institutions of a country should cherish in the minds of the people a feeling of the sacredness of human life, and he believed that in proportion as capital punishments had been abolished public feeling had been improved. The hon. Gentleman the Member for West Surrey made no allowance for the improved spirit of the age, and according to his doctrine, burning, hanging, and gibbeting alive were to be sanctioned because they had been practised in former times. The hon. Member says, the scriptural command, "Whoso sheddeth man's blood by man shall his blood be shed," is in his opinion as plain as words can make it. He (Mr. Brotherton) had the best authority for declaring that that text was not a command but simply a declaration of the principle of retributive justice. That it was no more to be taken as a justification of the punishment of death than the words of our Saviour, when he said, "He that takes the sword will perish by the sword," or "With what measure ye mete to others it will be measured to you again." If the text were to be taken in the sense in which it was commonly understood, one murder would lead directly to another, and in that case where was blood-shedding to end? He believed that if he had the opportunity he could show that the text of the Old 1260 Testament, on which the advocates of capital punishment relied, might be very differently interpreted. The same God gave the laws of the Old Testament that gave the laws of the New; and he would not contradict himself, he would not say, "Thou shalt not kill," and afterwards ordain that the disobedient child, the Sabbath-breaker, or, if an ox killed a man the owner should be put to death. "Putting to death" could not mean in Scripture the taking of the natural life; in many cases it meant excommunication. The crimes which were formerly punished by death, and which are no longer so punished have not increased, but decreased, since that punishment was abolished, and he believed that there was a growing public opinion, that crime diminished in proportion to the mildness of the laws. The State had power over the civil, but it had no right to take the natural life. Man had not the right to destroy his own life, and he had no right to delegate that power to the State. Believing that many important facts might be brought before a Select Committee proving that public executions were demoralising by their example, and did not deter from crime, he should cordially support the Motion of his hon. Friend the Member for Dumfries.
§ MR. WARNER
said, he must complain that the right hon. Baronet, the Home Secretary, had misrepresented the Motion of his hon. Friend (Mr. W. Ewart). He treated it as if it had been for the total and immediate abolition of capital punishment. If this had been its object, he for one could never have given it his support. He did not believe that the punishment of death could be abolished in the present state of society in this country. He hoped the time might come when it would be still more seldom resorted to, or perhaps even abolished altogether. In the meantime it was most desirable to consider of the means which were in our power to provide a substitute in secondary punishments. At present there was no certainty in our secondary punishments. We must find means to overcome the difficulties connected with transportation. We must be prepared to provide a system of severe imprisonment. We might not find it necessary to adopt imprisonment for life, with periodical corporal punishment, though he believed that had been tried with success in some countries. But we must, at least, introduce solitary confinement for life, without any hope of pardon. These were important questions for a Committee 1261 to consider. Perhaps they might also devise some improvement in the manner of capital punishments, as long as we were compelled to continue them. He did not speak of private execution. No one, he believed, had ever recommended private execution. What had been often proposed here, and had been tried in some States of America, was executions within the walls of the prison, taking place, not privately, but before a numerous jury of witnesses. For these reasons he would support the Motion. He was sorry that the theological question had been introduced into the debate. There was little force in the arguments from it on either side. He maintained, that those who possessed the Sovereign power in every country, be they kings or people, had the power of life and death delegated to them by Providence. They were bound to make such laws as they believed would best secure the great interests of the State, and they were responsible only to God and to their own consciences. As a member of the Legislature of this country, he would never consent to abdicate the right and the responsibility which belonged to it. If they did this, they would deserve to lose their place among the nations, and the high character they held for the justice of the laws, and the uprightness of their administration. But there was room for inquiry, how far these laws could be improved, and with that view he should give his vote for the Motion of his hon. Friend.
§ Motion made and Question put, "That a Select Committee be appointed to inquire into the operation of the Law imposing the Punishment of Death."
§ The House divided: for the Motion:—Ayes 64; Noes 158: Majority 94.
|List of the AYES.|
|Adair, H. E.||Ferguson, J.|
|Alcock, T.||FitzGerald, Sir J.|
|Barnes, T.||Forster, C.|
|Bell, J.||Fox, W. J.|
|Biggs, W.||Gibson, rt. hon. T. M.|
|Bignold, Sir S.||Greene, J.|
|Blakemore, T. W. B.||Headlam, T. E.|
|Brotherton, J.||Heywood, J.|
|Brown, W.||Hindley, C.|
|Chambers, T.||Holland, E.|
|Clifford, H. M.||Hutchins, E. J.|
|Cogan, W. H. F.||Hutt, W.|
|Cowan, C.||Ingham, R.|
|Crossley, F.||Jackson, W.|
|Currie, R.||Kelly, Sir F.|
|De Vere, S. E.||Kennedy, T.|
|Duncan, G.||Kershaw, J.|
|Ewart, J. C.||Langton, H. G.|
|Fagan, W.||Laslett, W.|
|Lee, W.||Robartes, T. J. A.|
|M'Mahon, P.||Scholefield, W.|
|Maguire, J. F.||Scobell, Capt.|
|Meagher, T.||Smith, J. B.|
|Miall, E.||Thompson, G.|
|Milligan, R.||Thornely, T.|
|Michell, W.||Tite, W.|
|Mowatt, F.||Walmsley, Sir J.|
|Muntz, G. F.||Warner, E.|
|Pechell, Sir G. B.||Whitbread, S.|
|Pellatt, A.||Williams, W.|
|Phillimore, J. G.|
|Raynham, Visct.||Ewart, W.|
|Richardson, J. J.||Hadfield, G.|
|List of the NOES.|
|Acland, Sir T. D.||Floyer, J.|
|Agnew, Sir A.||Fortescue, C. S.|
|Bailey, Sir J.||Freestun, Col.|
|Baillie, H. J.||Gallwey, Sir W. P.|
|Baines, rt. hon. M. T.||Gladstone, rt. hon. W.|
|Ball, E.||Gladstone, Capt.|
|Baring, rt. hn. Sir F. T.||Glyn, G. C.|
|Baring, T.||Gower, hon. F. L.|
|Barrow, W. H.||Grace, O. D. J.|
|Baxter, W. E.||Graham, rt. hon. Sir J.|
|Beaumont, W. B.||Greenall, G.|
|Beckett, W. F.||Greene, T.|
|Bellew, T. A.||Gregson, S.|
|Berkeley, hon. H. F.||Grenfell, C. W.|
|Berkeley, F. W. F.||Grey, rt. hon. Sir G.|
|Black, A.||Grey, R. W.|
|Blackburn, P.||Gwyn, H.|
|Blandford, Marq. of||Hamilton, Lord C.|
|Bond, J. W. M'G.||Hamilton, G. A.|
|Bouverie, rt. hon. E. P.||Hankey, T.|
|Bramley-Moore, J.||Harcourt, Col.|
|Bramston, T. W.||Hastie, Archibald|
|Brand, hon. H.||Heneage, G. H.|
|Bruce, Major C.||Herbert, H. A.|
|Buckley, Gen.||Hotham, Lord|
|Burrell, Sir C. M.||Howard, hon. C. W. G.|
|Cardwell, rt. hon. E.||Hughes, H. G.|
|Castlerosse, Visct.||Johnstone, J.|
|Cockburn, Sir A. J. E.||Johnstone, Sir J.|
|Collier, R. P.||Kendall, N.|
|Conolly, T.||Kinnaird, hon. A. F.|
|Coote, Sir C. H.||Labouchere, rt. hon. H.|
|Corbally, M. E.||Lewis, rt. hon. Sir G. C.|
|Cowper, rt. hon. W. F.||Liddell, hon. H. G.|
|Davie, Sir H. R. F.||Lovaine, Lord|
|Davies, J. L.||Lowe, rt. hon. R.|
|Deedes, W.||Mackie, J.|
|Dering, Sir E.||Mackinnon, W. A.|
|Dillwyn, L. L.||MacGregor, James|
|Drummond, H.||M'Taggart, Sir J.|
|Duckworth, Sir J. T. B.||Malins, R.|
|Duff, G. S.||Martin, J.|
|Duff, J.||Martin, P. W.|
|Dungarvan, Visct.||Monck, Visct.|
|Dunlop, A. M.||Monsell, rt. hon. W.|
|Egerton, W. T.||Moore, G. H.|
|Egerton, E. C.||Morgan, O.|
|Esmonde, J.||Morris, D.|
|Evelyn, W. J.||Mowbray, J. R.|
|Farrer, J.||Murrough, J. P.|
|Fergus, J.||Napier, Sir C.|
|Ferguson, Sir R.||Newdegate, C. N.|
|Ferguson, Sir J.||Nisbet, R. P.|
|FitzGerald, J. D.||Northcote, Sir S. H.|
|Fitzgerald, W. R. S.||O'Brien, P.|
|O'Brien, Sir T.||Stracey, Sir H. J.|
|O'Brien, J.||Strutt, rt. hon. E.|
|Packe, C. W.||Swift, R.|
|Pakington, rt. hn. Sir J.||Tollemache, J.|
|Palmerston, Visct.||Tottenham, C.|
|Patten, Col. W.||Tyler, Sir G.|
|Peel, Gen.||Vance, J.|
|Pennant, hon. Col.||Vane, Lord H.|
|Percy, hon. J. W.||Vernon, G. E. H.|
|Perry, Sir T. E.||Vivian. H. H.|
|Ponsonby, hon. A. G. J.||Waddington, H. S.|
|Pritchard, J.||Walcott, Adm.|
|Pugh, D.||Walter, J.|
|Repton, G. W. J.||Whitmore, H.|
|Ridley, G.||Wilkinson, W. A.|
|Robertson, P. F.||Wilson, J.|
|Rushout, G.||Wood, rt. hon. Sir C.|
|Russell, F. C. H.||Woodd, B. T.|
|Rust, J.||Wyndham, Gen.|
|Sandon, Visct.||Wynn, Lieut. Col.|
|Seymour, H. D.||Wynne, W. W. E.|
|Shirley, E. P.||Wynne, rt. hon. J.|
|Smith, rt. hon. R. V.|
|Smollett, A.||Hayter, rt. hon. W. G.|
|Spooner, R.||Mulgrave, Earl of|